The Rule of Necessity

The interrelated subjects of judicial recusal and disqualification have been discussed here: Lessons in Recusal and DisqualificationRecusal Lessons from PennsylvaniaUnrecused, is that a Thing; and Why do we Recuse. It is a recurrent topic because of its complexity and the many judicial implications it has. 

A recent Missouri case addresses the subject in a context that will be unfamiliar to many or perhaps most Floridians: the Rule of Necessity. The case is Nivens v. Interstate Brands Corporation, WD82132 consolidated with WD82136 (Mo. Ct. App., 2019). In it, the state second injury fund sought the Court's review of a decision of Missouri's Labor and Industrial Relations Commission. 

In American workers' compensation, there are a vast variety of procedural processes engaged. As an example, Florida law directs that all disputes regarding workers' compensation are to be adjudicated by Judges of Compensation Claims (JCC), which are administrative (Executive Branch). In neighboring Alabama, all such benefit disputes are adjudicated by the same constitutional courts that preside over personal injury, probate, family maters, and more. There are decisions rendered by commissions, after fact finding by deputy commissioners. There are administrative law judges, judges of compensation claims, and more. 
Another way in which Florida is distinguished from other state workers' compensation systems is our appellate process. Decisions of a Florida JCC are reviewable only by the Florida First District Court, a constitutional court. In other states, trial adjudications may come from a state "commission," or the adjudications of the state's workers' compensation judges may be reviewed by such a "commission" or "board." Missouri is such a state. The Commission there concluded an injured worker to be "permanently and totally disabled." Neither the worker nor the second injury fund was pleased and each sought review. 
The Fund "allege(d) that the Commission improperly invoked the Rule of Necessity." Therefore, "a conflicted commissioner" nonetheless took part in deciding the case and awarding benefits. Following a long employment history, the worker was injured in 2008. Thereafter the employer accommodated his return to work by providing "him with an assistant who was responsible for" some of the more physical elements of his job. After a time, that accommodation was withdrawn, leading to the claim for permanent total benefits. 
An Administrative Law Judge ("ALJ") heard the case in 2017 and "entered a Final Award" regarding benefits and liability. The Second Injury "Fund appealed the award of the ALJ to the Commission." One of the three Commissioners, "Commissioner Chick initially declined to participate in review of the action because he had a 'social relationship' with" this particular injured worker "when (in) . . . high school" (before his graduation in 1966, 52 years before this case). The Commissioner did so to "avoid any appearance of impropriety." The "appearance" standard has been discussed here before, see Judicial Ethics and the Great PumpkinSocial Media and Judges; and Fundraising and Politics by Judges
The Commission was thus comprised of only two decision makers. There are instances in which that would not necessarily be troublesome, but in this instance the two disagreed as to the outcome. Thus, there was no avenue to a Commission decision. The disqualification of Commissioner Chick left the agency in deadlock. Following that determination of a deadlock, "Commissioner Chick invoked the Rule of Necessity to (re)join in the review," sided with one of the other two Commissioners, and thus a 2/1 decision was rendered by the Commission. 
The Second Injury Fund asked the appellate court to conclude the invocation of the "Rule of Necessity" was error. The Court reminded that the factual conclusions of the Commission were entitled to deference, but that "issues of law," such as the disqualification of an adjudicator, were subject to an examination anew, a "de novo" consideration. The Court undertook a detailed review and explained that the "Rule of Necessity" is to "be viewed with 'special intensity,'" with consideration of whether "any injustice has been done." 
The Fund noted particularly that a new commissioner was appointed days after the Commission decision joined by Commissioner Chick. It argued that Commissioner Chick "should have waited" for that appointment, and allowed the new commissioner to decide the case. The Court explained that the "Rule of Necessity" is reserved for situations in which "no arrangement is made for a substitute judge." It is a necessity "because there is no mechanism under the statute to allow a final award to be entered" in a stalemate. In effect, there is thus some path to imperfect justice despite appearances. 
The Court affirmed the Commission decision. It noted that although a replacement was later appointed, there was "nothing in the record to suggest that the Commission knew that an appointment was imminent." Though two commissioner's terms had expired, including Chick's, there was no evidence as to an anticipation of immediate replacement. The Court also noted that the new commissioner might well have maintained the previous deadlock ("The newly appointed commissioner did not replace Commissioner Chick"), potentially leading nonetheless to the necessity of Chick's re-entry into the dispute. 
The Court explained that Commissioner Chick had not stated that "he is not an impartial adjudicator in Mr. Nivens' case." Instead, he removed himself because of the potential for an appearance based upon "a social relationship . . . over fifty years before." This does not equate to an inability to be impartial. And, the Court noted, that even if the relationship between Chick and Nivens had been closer and more recent, Commissioner Chick would nonetheless have been justified in re-entering the deliberation in these circumstances.
The key word to describe the Rule of Necessity is perhaps imperfect. That is, it is practical to believe that our various rules and processes will not always yield the ultimate conclusion. There will always be humans involved in the process of adjudication and as such there will always remain the potential for human frailty and imperfection. The result of any litigation may likewise be imperfect. The goal is therefore not to demand absolute elimination of any imperfection, but to enforce effective processes through which all judges strive toward that goal. In some rare circumstances, the facts may not allow the best outcome and then the necessary outcome may be the remaining choice. And, in those instances, the court review should be more intense, a careful and particular search for injustice.
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    About The Author

    • Judge David Langham

      David Langham is the Deputy Chief Judge of Compensation Claims for the Florida Office of Judges of Compensation Claims at the Division of Administrative Hearings. He has been involved in workers’ compensation for over 25 years as an attorney, an adjudicator, and administrator. He has delivered hundreds of professional lectures, published numerous articles on workers’ compensation in a variety of publications, and is a frequent blogger on Florida Workers’ Compensation Adjudication. David is a founding director of the National Association of Workers’ Compensation Judiciary and the Professional Mediation Institute, and is involved in the Southern Association of Workers’ Compensation Administrators (SAWCA) and the International Association of Industrial Accident Boards and Commissions (IAIABC). He is a vocal advocate of leveraging technology and modernizing the dispute resolution processes of workers’ compensation.

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